Colorado environmental groups one year ago won an administrative law judge’s ruling that state water quality regulators were failing to monitor potential contamination from mountains of manure at so-called “factory farms.”
So why are they now suing over the same issue in state district court?
At the heart of the ongoing dispute is a maddening case of circular logic: Colorado’s largest animal farms produce 17 million tons of manure a year, environmental groups argue, and their state water quality permits should require them to monitor nearby fresh water to make sure there’s no leakage.
The Colorado Department of Public Health and Environment responds, including when overruling the administrative law judge last month, that there’s no evidence the factory farm manure pits are leaking, so there’s no reason to require monitoring.
Exactly! The environmental groups respond: Without monitoring, Coloradans will never know the facts, and that’s why the federal Clean Water Act requires monitoring.
Here’s some background on the dispute over Colorado’s biggest farms, which will now send the parties to a new round of battles in district court for Larimer County.
What are factory farms and how are they regulated?
The larger industrial-size farmers and even some regulators use a different term, “concentrated animal feeding operations,” or CAFOs. In such farms, animals do not graze or roam free but instead are confined and large quantities of food are brought to them. Their waste, or effluent, washes into large treatment ponds that must be lined against leakage.
Food and Water Watch, a party to the Colorado objections and a group that wants to ban factory farms altogether, offers a definition of medium to large farms:
- Cattle feedlots with more than 300 head
- Pigs under 55 pounds with more than 3,000 animals
- Poultry with more than 25,000 egg-laying chickens
Feedlots in Greeley have capacity for tens of thousands of cattle, according to The Denver Business Journal.
Colorado has an agreement with the Environmental Protection Agency to enforce the Clean Water Act at big farms by issuing what’s called a general permit. Instead of each farm applying for its own permit with specific conditions, they can receive and operate under the general permit covering more than 100 locations in the state.
What’s the worry about factory farm effluent?
Many of Colorado’s largest feeding operations are northeast along the South Platte River corridor. Environmental groups like Food and Water Watch and the Center for Biological Diversity fear that Colorado’s water reality — groundwater is closely tied to surface water — means that leaks from manure ponds would find their way into drinking water sources and wildlife areas.
Excess nitrogen and phosphorus from waste and fertilizer are a danger to Colorado streams. Large farms can also produce E. coli and other toxins, runoff from antibiotics use, and chemicals from cleaning holding pens and other production areas.
Colorado regulators and the state Livestock Association, which has intervened in the case alongside the state, say the current general permit is tougher than other states and adequately protects surface water. They say there is no connection between various farms’ holding ponds and surface water, and that current permits already guarantee that.
How are environmental groups fighting the state?
They asked the state to modify its initial general permit draft to include ongoing water monitoring at permitted farms, among other things. When the state didn’t agree, the groups went to an administrative law judge.
Last year, the judge ruled in their favor, saying the Clean Water Act requires the state health department to include “representative monitoring to assure compliance.” But the system then allows either the state or intervenors like the Colorado Livestock Association to take “exception” to the ruling, and ask the director of the Colorado Department of Public Health and Environment to overrule the judge.
The health department overruled the judge in April.
The Colorado factory farm permit “still suffers from the same deficiencies that the public interest groups first identified in 2021,” said Hannah Connor, an attorney with the Center for Biological Diversity.
Colorado procedure now allows the environmental groups to sue over the same issue in the state district court system. The Larimer County district court lawsuit says CDPHE director Jill Hunsaker Ryan acted in a way that was “arbitrary, capricious, and contrary to law” when she overruled the administrative law judge.
“The average Colorado feedlot today confines nearly 13,000 beef cattle — an increase of nearly 80% in the past 20 years. The average Colorado mega-dairy herd size has more than doubled over this time to 3,000 cows,” the center said in a release announcing the Larimer County lawsuit. The case is being handled for the environmental groups by the Environmental Law Clinic at the University of Denver Sturm College of Law.
Food and Water Watch said throughout the three years of pushing state regulators over factory farms, the main issue has stayed simple: “You can’t control what you don’t measure,” group attorney Tyler Lobdell said.
What happens next?
Final word on the permit could take years longer, as district court decisions are subject to appeal by either side. In the meantime, the 100-plus large farms operate under the terms of the state-issued permit.
As they continue to fight, the environmental groups cite wins in Idaho and Washington that the Colorado administrative law judge also mentioned. In Idaho, the EPA issues the large farm permits itself. A Ninth U.S. Circuit Court of Appeals decision ordered the permit to be rewritten because it failed to monitor potential runoff and leak impacts on nearby water.